When is an Arbitral Panel an International Tribunal?
When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the U.S. statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield.
Ever [...]
New Scholarship: The Rules, Practice, and Jurisprudence of International Courts and Tribunals
- By Chiara Giorgetti, White & Case LLP,
for White & Case
The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Martinus Nijhoff Publishers, 2012) has just shipped.
I am the (proud) editor and a contributor of the book and am delighted to have the opportunity to bring it to the attention of this group. I think it will be of special interest to arbitration practitioners.
The book examines the main existing international dispute resolution bodies in a systematic, comprehensive and accessible way.
To the extent possible, chapters are structured similarly, and each chapter explores a specific dispute resolution forum.
After a short introduction of the forum, each chapter provides essential information of the institution examin [...]
2012 Queen Mary / White & Case International Arbitration Survey Launched
- By Paul Friedland, White & Case LLP,
for White & Case
The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL).
Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging, by canvassing the views of experienced arbitration practitioners from all over the world,” comments Professor Loukas Mistelis, Director of the School of International Arbitration at QMUL.
Entitled “Current and Best Practices in the Arbitral Process,” the survey is the fourth carried out by QMUL since 2006, [...]
Declaratory award held enforceable by English Court of Appeal: further support for reform of the Brussels Regulation
- By Phillip Capper, White & Case LLP,
for White & Case
This is an update on the post of 27 January 2012 dealing with the African Fertilisers decision. Last week, the English Court of Appeal handed down its judgment in the latest episode of the West Tankers dispute, upholding the first instance decision and approving the decision of the Commercial Court in African Fertilisers. The decision affirms the continued pro-arbitration stance of the English courts, the Court of Appeal emphasising that “the efficacy of any award by an arbitral body depends on the assistance of the judicial system”.
The factual background to West Tankers has been widely discussed (and is summarised in paragraphs 1 to 14 of the judgment) and there is no need to do so [...]
The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Mass claims and the distinction between jurisdiction and admissibility (Part II)
With the release of the Dissenting Opinion in Abaclat v. Agentina, we now have the benefit of a forceful critique of the majority’s decision that the Abaclat Tribunal has jurisdiction to hear the claims of over 60,000 Italian investors against Argentina under the ICSID Convention and the Argentina-Italy BIT. Professor Georges Abi-Saab’s Dissenting Opinion (the Dissent) raises a number of objections to the majority’s decision. Most importantly, it states that the Tribunal “faces two glaringly insuperable obstacles that prevent it from taking jurisdiction”. First, the investors’ security entitlements are not protected investments, in particular, because the investments were n [...]
